Posts Tagged ‘Freedom of Religion and the Secular State’

The starting point is an interesting one, but also one that I think most people can accept. After reading the book, I was discussing the “keep the peace and provide security” aspect of it with a co-worker who denied that that was what society and government was for, and yet I was eventally able to convince him that that is at least part of it by pointing out that while he thought he might be able to protect himself fully from all challenges, it would result in his living a life that he didn’t want to live. Thus, he wanted to be able to leave himself so vulnerable, and that was what the state provided. I also think that the only religious people who would deny this are those who absolutely want a theocracy; for everyone else, this seems reasonable.

But the main issue, again, is that moving from that reasonable starting point to his conclusion is not as easy a move, and everything depends on it. Thus, when he talks about the principles by which the State should be organized and particularly how religion and the law should interact, his arguments don’t really seem convincing … and, in fact, it looks like his starting point might justify the opposite conclusion. So definitely more work needs to be done on that before I, at least, will be convinced.

Unlike some other authors, Blackford does address opposing positions frequently, and seems to be presenting them fairly (although I cannot say for certain since I’m not familiar with the opposing viewpoints). This is nice and also helps to clarify what his position is.

Overall, the book is a good start, but is really only a start to the debate. It doesn’t even come close to ending it.

I don’t think it’s much if any exaggeration to say that the most important issue when discussing freedom of religion and the secular state is what happens when the secular laws and the religious laws clash. This is where the rubber meets the road, and where we really see what it means to have a secular state. So, this is the part of Blackford’s book that I was most interested in.

Blackford’s take on this is essentially this: The agreement between the secular state and religions is that the secular state handles the worldly and the religions handle the otherworldly. Thus, the secular state must legislate only on the consideration of worldly concerns. Thus, the laws they institute reflect and promote those worldly concerns, and must be applied to provide those worldly concerns. Thus, if they infringe on religious practice since they are not aimed at restricting religious practice they must still be considered worldly, and thus perfectly within the purview of the secular state to make regardless of the religious implications. Thus, religions must demonstrate a reason sufficient to the concerns of the secular state in order to get themselves exempted from it, which means that they must provide an overwhelming secular reason for the exemption. Thus, in general, religions must follow the secular laws unless they can give an exceptionally strong secular reason for doing so.

In a sense, for Blackford this isn’t as problematic as it might sound, because based on his very liberal and individualistic philosophical commitments he expects the State to stay out of a lot of things that might cause problems with religious practice. For example, he talks about an exemption for drug use not being required because the State shouldn’t be restricting that choice as well. However, those that are not so strongly liberal or individualistic will find that this is, in fact, quite a difference from how existing liberal democracies generally work. Is it justified?

Recall the starting point: to keep the peace, the State gives otherworldly concerns over to religions, while it restricts itself to the worldly. It seems to me that any time a secular law restricts religious practice, the State is thus breaking that agreement. Blackford, of course, agrees that doing it intentionally is clearly unacceptable — you can’t make a religious practice illegal because you want to kill that religion — but I would argue that doing it blindly out of a deliberate ignorance of religious practice is just as bad, if not worse. At least in the former case one can see where the opposition is and fight it as a clearly invalid encroachment on freedom of religion, but the blind impositions run the risk of simply running roughshod over religions without ever having any idea what it is actually doing, eliminating some otherworldly options without ever realizing that that is what one is doing. And if one eventually appeals back to the original starting point to say that completely eliminating a religion violates the initial agreement, it ultimately becomes quite reasonable to say that the agreement was violating long before that point.

So I take the exact opposite position to Blackford’s: religions must be accommodated and given exemptions from secular impacts unless there is a strong secular reason to include them in the law.

Let’s see how this could shake out in practice, using Locke’s cattle example that Blackford relies on:

1) If the religious practice does not fit the reasoning for why the law needs to be enacted in the first place, the religious practice must be exempt from it. So, if a law was raised against eating beef due to, say, concerns about obesity, but the slaughter of cattle in the religious practice isn’t for consumption, then the religious practice must be exempt. A better example might be serving communion wine to minors. Many jurisdictions have this as a law, but this is to avoid the perils of underage heavy drinking; the small amount in the religious ceremony has no risk of that, and so should be exempt.

2) If the secular reason for the law is not strong enough to overcome freedom of religion, then the religious practice must be exempted from the law. Thus, if the state enacted a ban on cattle slaughter to allow for there to be more to be exported in order to increase the GNP and thus slightly improve the economy, it would seem that this is insufficient a reason to interfere with religious practice. Thus, the religious practice should be exempted.

3) If the religious practice fits the purpose of the law, and the reason for the law is strong enough to overcome religious freedom, then the religious practice should not be exempted. A case might be made, for example, that if a slaughter and ban was put in place to combat mad cow disease, which has a great impact on the health of others, then the religious exemption should not be allowed. In general, once the impacts of the exemption greatly affect too many people not of that religion it is a prime candidate to be a law where no exemptions.

Blackford asks for a strong secular reason before religious practices are granted exemptions for laws. I submit that they have one by default: the very principles that Blackford uses to justify the separation of Church and State in the first place. Thus, in order to apply laws that restrict religious practice the State must provide a reason at least equal to that one, or else the religious practices must be granted exemptions … or else we don’t really have a separation of Church and State at all.

Blackford does take a stab at this by arguing that exempting religions can increase discord and resentment, which is not likely to increase the peace. This is a weak argument because it can be seen that doing anything that someone doesn’t like is likely to cause resentment and discord. The real key, as we saw in the post on morality, is to identify what the reason is for the exceptions and exemptions and differences, and so for the State to be able to appeal to a sufficiently strong worldly reason for doing what it is doing. For the religious exemptions, it has it by appealing to the whole reason there was this separation in the first place. This, then, should be all the convincing people need to accept it, and if they don’t then it isn’t a rational, secularly valid resentment … unless they can muster an argument of similar strength.

Ultimately, I argue that by the principles that lead us to leave worldly things to the State and otherworldly things to religion, it must be presumed that religious practices are exempted from secular laws, and that the State must give an overwhelming secular reason to overturn that presumption. The State, then, cannot simply argue that they want to include religious practices in the law, but that they must include religious practices in that law. Blackford’s proposal, to me, violates the basic principles he uses to justify the separation of Church and State, and so risks destroying it altogether. If the State is willing to interfere blindly in otherworldly affairs, then the Church must get involved in the State to ensure that its interference is at least not blind. Thus, if we want to preserve the separation of Church and State, the State must be very careful when and how it interferes with the Church and thus the Church must be very careful in when and how it interferes with the State.

There is much more to say on this topic, of course, but this I think suffices for now to get the discussion off the ground. I will make one more post summarizing my overall thoughts on the book, to bookend the discussion.

In Chapter 5, Blackford argues against using religious-based morality to determine or influence secular laws, but it seems to me that he goes further. He actually ends up arguing that a secular state has no reason to make laws on the basis of morality at all. Instead, we can use principles that are “political” and not, therefore, explicitly moral. The problem here is with what he suggests we can replace them with:

… the harm principle, principles relating to such matters as free speech, reproductive liberty, and sexual privacy are always available to be raised in political debate [pg 84]

Well, excluding the harm principle, those last three really do seem like moral principles to me. What, then, is the harm principle? Well, it’s John Stuart Mill’s main principle:

… only the prevention of harm to others can justify the exercise of power over an individual in a civilized community [pg 71].

Again, this sounds an awful lot like a moral principle to me. Even his starting point could be accused of being a moral principle or position; there’s a reason that the Hobbesian Social Contract at least used to be taught in introductory ethics classes. The Locke that Blackford is using would likely be in there as well if not for the fact that Locke is far better known for other things. So it’s starting to look at lot like Blackford is defining the moral principles that he happens to agree with as being “political”, and thus acceptable, while rejecting the ones he doesn’t agree with as being an imposition of morality, aided by the fact that his preferred principles are liberal and so allow for more freedom of choice and so seem, at least, like less of an imposition.

While he might be able to claim, reasonably, that religious moralities can’t be the basis for laws — in the sense that you cannot say “The Bible says” or “The Quran says” or “Vishnu says” as the sole or main justification for a law — in order to preserve the separation of Church and State that is a reasonable argument, it seems unlikely that he could say the same about Stoic or Kantian moral principles, for example. But both of these are not likely to take the same view as the principles Blackford cites. Thus, his only hope is to justify it from the starting point of the State that he uses from the beginning, and thus can distinguish them. But since liberalism and individualism does not follow naturally from that starting point, he will have to argue for it.

To his credit, Blackford does indeed try to argue for it, but it is a fairly weak argument. He tries, essentially, to argue that his starting point leads to secularism — which is a fairly credible argument — and then from there that secularism leads to liberalism. The main weakness here is that he spends a lot of time talking about religious moralities, and not about other alternatives, and about communitarian or conservative viewpoints that might disagree. It is not hard to imagine, for example, a communitarian society railing against a lot of the individual freedoms that Blackford uses as his main principles, arguing that having a set of common values — especially including moral values — is key to maintaining a stable society. Thus, from that viewpoint, the State imposing moral values is key to stability, and not detrimental to it.

Blackford does take that notion on, arguing essentially that while our armchair notions that so liberal a society might be unstable, history has shown that societies with such mindsets have been stable, and so reality has trumped our philosophy. There are two problems with this argument. The first is that it isn’t indicative; communitarian societies with a common set of values, including moral values, have also proven stable, and likely more stable than others, as long as the promoted values and the values of the people agree. The second is that even in those countries the State legislates morality. Take any nation with anti-discrimination laws — the hallmark, it seems to me, of modern liberal societies — and tell me that that isn’t, in fact, legislating morality. All societies then, it seems to me, do in fact create laws that are based on morals. The successful, stable societies simply make their laws based on the moral values that the people actually have. Thus, societies that are liberal make liberal laws; societies that are conservative make conservative laws. Societies that are individualistic make individualistic laws; societies that are communitarian make communitarian laws. As long as the laws match what the people think is moral, there is no issue with legislating on the basis of morality … and, in fact, it seems that most people expect it.

So, as long as the State makes laws that reflect the moral values of the people, the society will remain stable. The State can, however, make laws that may influence the moral values of the people, as long as that is not their purpose. They can, instead, make laws out of an overwhelming secular need that happen to impact or go against the common moral values. For example, in WWII Allied nations quite quickly mobilized women and put them to work in the factories, freeing up more men to act as troops while maintaining their industries. Germany, on the other hand, was slow to mobilize women due to the “traditional values” stance of the Nazi Party, which put Germany at a production disadvantage. It can easily be argued, I think, that that did quite a bit to foster equality movements for women. In the Civil War, again the North mobilized black forces into their army, which the South could not do. Many black troops thought that this would be an excellent way for them to earn their rights, even the vote, despite the fact that racism was still alive and well in the North. So, while in both cases the actions went against the established moral values of the society, it was accepted due to there being an overwhelming secular need — generally, preservation of the State — to do so. Seen that way, it fostered less objections and resentment, and once the genie was let out of the bottle it would not be so contained again.

In some sense, the battle over same-sex marriage can be seen as reflecting both sides of this. Some of the animus towards same-sex marriage from people who are not homophobic is due to a seeming disconnect between the values of the society and the values that the government and courts are trying to promote. It seems like too much of an imposition, and running roughshod over society to promote the values that the government and the courts have, but that the people do not. The only recourse is to appeal to what is indeed presumed to be a shared value, which is the liberal one of anti-discrimination and the pursuit of happiness. But on any case where that argument does not take root, all that is left is a government seemingly imposing values for no good secular reason, and that sort of thing always leads to instability and resentment.

At any rate, it is thus unclear that the secular state leads to liberalism, or that the state has to get out of making moral laws. In fact, history seems to demonstrate that the state is expected to legislate morality. Blackford himself seems willing to legislate morality under the guise of the political. Thus, we will not escape moral laws that easily.

So, this weekend, I’m finally going to try and write out my thoughts on this book. I think this will be in three parts. This one will be the introduction and a discussion of the work as a whole. The second one will talk about Blackford’s claim that his form of a secular state doesn’t get into morality, and I’ll be arguing that in the end he ends up arguing this on moral grounds and using moral presumptions. The last part will focus directly on the interactions between the secular states and religion, and will talk about Blackford’s view of religious accommodation. As you might be able to guess, this is going to be more of a commentary and less of a review, and thus I’ll be focusing on the points that I, at least, find more problematic in the book.

As an overall statement of the book, the philosophical discussion is detailed and interesting. It’s unfortunate that, in my opinion, the actual discussion of separation of Church and State is relatively weak. Blackford starts out with an interesting premise, but it seems to me that the premise itself simply cannot bear the weight of his later arguments. Thus, the later arguments seem unconvincing and, as stated, a bit weak; there seems little big reason to accept the strong claims he makes later. Note that this isn’t a criticism of the claims — although I do disagree with many of them — but more the support for those claims; from his starting point, Blackford simply can’t support his claims of how these things should interact, but it is the justifications of these claims that we really wanted. To his credit, he’s generally pretty clear about his claims and is also generally modest about his claims when necessary.

His basic premise, then, starts from Hobbes and Locke, both of which essentially argued that the role of the State was to provide peace and the good life to the citizens. As religion is potentially divisive and thus is likely to cause unrest, the State needs to decide how to react to this thing that’s crucially important in the life of its citizens. It can take sides in otherworldly matters and try to impose a religion on the citizenry, but it is supremely unqualified to do so. Alternatively, it can focus on providing worldly goods and leave the determination of otherworldly goods to religions themselves. The latter seems to provide the most peace and the best worldly ends, and so this is the one that Blackford accepts. But we can see that this is all underpinned by the idea that the State is supposed to provide peace and stability for its citizens, which is does by focusing on worldly or what we can now call “secular” matters.

This is a very interesting argument, and it seems broadly right. If the State was going to get involved in determining what was the right otherworldly belief system, it would simultaneously alienate a large number of its citizens while at the same time find itself unable to actually determine with any reasonable degree of certainty what the correct system was. While worldly matters — let’s exempt morality from this for now — are generally fairly easy to figure out, explain, and argue for, religions traditionally have never been that simple. Thus, by allowing each citizen to choose their own way of pursuing the otherworldly, and in fact insisting on it, the State thus manages to reduce potential conflicts and eliminate a potential source of resentment and unrest towards it.

This may sound like this is simply either a consequence of or a justification for a liberal, individualistic mindset, and it is clear that Blackford favours societies that are individualistic and liberal. This, however, is one of the bigger problems with the entire work, because it isn’t at all clear that the starting point of the State — preserve the peace and provide the worldly goods — justifies liberalism and individualism. It seems fairly easy to argue that in some cases conservative or communitarian principles might well produce the best and most harmonious societies. Even trying to appeal to history doesn’t really settle the matter, as societies where the individual is subordinated to the society or where change only occurs slowly and with great care seem to have had some success. Many Eastern cultures, for example, are far more communitarian than Western ones, and did seem to have significant success in creating peaceful and stable societies. And liberal and individualistic societies have their own issues and potential for clash. So, then, it isn’t clear that we can get from Blackford’s starting point to liberalism and individualism.

This wouldn’t be a problem, as Blackford is usually pretty modest about his claims and accepts that one might not be convinced to make the leap from his starting principle to liberalism and individualism. It becomes a problem, however, later when his arguments depend on accepting a liberal or individualistic mindset in order for them to be credible. At that point, we become pointedly reminded that it isn’t any sort of liberal or individualistic principle that justifies his ideas of what a State should do, or what a secular state should be, or for how the divisions break down, but his initial starting principle. And since his initial starting principle doesn’t necessarily support liberalism and individualism, it becomes abundantly clear that it doesn’t necessarily support those arguments either. Which, as stated earlier, makes his arguments weaker than they should be. After all, if his starting principle doesn’t support it, then all he has to appeal to is individualism or liberalism … but then conservatives or communitarians will simply reject that appeal. And since a great deal of religions are both conservative and communitarian, the arguments for a secular state as Blackford conceives it will be utterly unconvincing to them.

Which means that a great deal of the people he would want to reach will not be reached by his arguments.

In the next part, I will look at one of the aspects that is likely to be controversial to religious people and, additionally, many people in general: can a valid secular state impose a morality, or should it stay out of the morality business entirely?